Ex Parte Plebuch

Patent Trial and Appeal Board

Sep 25, 2018

14281060 (P.T.A.B. Sep. 25, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/281,060 05/19/2014
20411 7590 09/25/2018
The Linde Group
200 Somerset Corporate Blvd.
Suite 7000
Bridgewater, NJ 08807
FIRST NAMED INVENTOR
Franz-Clemens Plebuch
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www .uspto.gov
ATTORNEY DOCKET NO. CONFIRMATION NO.
P07043 CIP 8221
EXAMINER
SHIRSAT, VIVEK K
ART UNIT PAPER NUMBER
3743
MAIL DATE DELIVERY MODE
09/25/2018 PAPER
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte FRANZ-CLEMENS PLEBUCH
Appeal 2018-002499
Application 14/281,060 1
Technology Center 3700
Before JOHN C. KERINS, EDWARD A. BROWN, and
RICHARD H. MARSCHALL, Administrative Patent Judges.
BROWN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Franz-Clemens Plebuch ("Appellant") seeks review under 35 U.S.C.
§ 134(a) of the Examiner's decision rejecting claims 1---6, 8, and 10. We
have jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM-IN-PART.
1 The Appeal Brief identifies Linde AG as the real party in interest. Br. 3.
Appeal2018-002499
Application 14/281,060
CLAIMED SUBJECT MATTER
Appellant's disclosure relates to working or processing components or
workpieces by autogenous processes. Spec. ,r 2.
Claims 1 and 8 are independent. Claim 1 is illustrative of the claimed
subject matter, and reads:
1. An enveloping gas device for transporting at least one
enveloping gas, wherein the enveloping gas device is allocated
to a burner head or at least one nozzle of a device provided for
working or processing at least one component or workpiece by
autogenous processes selected from the group consisting of
autogenous flame cutting, autogenous flame brazing and
autogenous flame gouging, characterized in that at least one
burner flame issuing from the burner head or nozzle and
directed towards the component or workpiece is completely
enclosed by the enveloping gas which is not consumed by the at
least one burner flame, and concentrating the flame on the at
least one component or workpiece and the concentration of
contaminants contained in the waste gas from the device is
reduced by the enveloping gas.
Br. 22 (Claims App.).
REJECTIONS
Claims 1, 3---6, 8, and 10 stand rejected under 35 U.S.C.
§ I02(a)(1)/(a)(2) as anticipated by Wang (US 2009/0233000 Al, published
Sept. 17, 2009).
Claim 2 stands rejected under 35 U.S.C. § 103 as unpatentable over
Wang and Ruppert (US 6,079,225, issued June 27, 2000).
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Application 14/281,060
ANALYSIS
Anticipation of claims 1, 3-6, 8, and 10 by Wang
Claims 1 and 3-6
The Examiner finds Wang meets all the limitations of claim 1. Final
Act. 3--4. Particularly, the Examiner finds Wang discloses an enveloping
gas device for transporting an enveloping gas (inert gas 114) and which is
allocated to a burner head or nozzle (nozzle 102) of a device for working or
processing at least one component or workpiece ( substrate 106) by
autogenous processes selected from the group consisting of autogenous
flame cutting, autogenous flame brazing and autogenous flame gouging, as
well as all limitations following the phrase "characterized in that" in claim 1.
Id. (citing Wang ,r,r 36, 39, Fig. 1). Regarding the recited "autogenous
processes," the Examiner determines, "because the burner taught by Wang
produces a flame from premixed hydrocarbon/oxygen [paragraph 0012] (as
opposed to air) the flame would have sufficient temperature to perform the
processes of flame cutting, flame brazing, and flame gouging." Id. n. 1.
Appellant contends that Wang does not anticipate claim 1. Br. 12.
Appellant describes flame cutting, flame brazing, and flame gouging
processes. Id. at 14--15. Appellant then contends that these processes are
different from the processes taught by Wang. Id. at 15. According to
Appellant, the claimed processes are different, autogenous processes such
that when joining occurs, it is done either without solder or with a filler of
the same metal as the pieces being welded. Id. Appellant contends Wang
teaches that the materials are different. Id. Appellant further contends that
the claimed processes "are typically ones where the torch assembly moves
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Application 14/281,060
over the piece to be worked ... [whereas] Wang teaches that the substrate is
the moving component and not the flame source." Id.
Appellant's contentions are not persuasive. Claim 1 is directed to an
enveloping gas device, that is, an apparatus. "Apparatus claims cover what a
device is, not what a device does." Hewlett-Packard Co. v. Bausch & Lamb
Inc., 909 F.2d 1464, 1468 (Fed. Cir. 1990). As such, claim 1 does not
require the enveloping gas device to actually perform any one of the recited
"autogenous processes." Appellant's contentions with regard to how the
claimed processes produce 'joining" and typically move the torch assembly
over the workpiece, rather than move the component (Br. 15), are not tied to
any structural limitations of the claimed device.
Appellant does not apprise us of any error in the Examiner's finding
that Wang discloses an enveloping gas device for transporting an enveloping
gas and which is allocated to a burner head or nozzle of a device provided
for working or processing a component or workpiece, as claimed. The
pertinent issue is whether Wang's apparatus is capable of working or
processing a component or workpiece "by autogenous processes selected
from the group consisting of autogenous flame cutting, autogenous flame
brazing and autogenous flame gouging."
Claim 1 does not recite that the enveloping gas device comprises a gas
supply that provides any particular enveloping gas or fuel gas composition to
produce the burner flame. Further, we note that Appellant's Specification
describes, "[ t ]he advantages of the present invention are realized for all fuel
gases." Spec. ,r 39. The Specification describes an "acetylene-oxygen flame
F" (id. ,r 33) using acetylene as a fuel gas and oxygen as an oxidant (id. ,r 4).
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Application 14/281,060
The Specification further describes that suitable enveloping gases include,
for example, argon and nitrogen. Id. ,r 40.
Wang discloses a burner set-up configured to combust a fuel and
oxidant to form a flame against an article or substrate. Wang ,r 11. Wang
discloses that "the term against does not exclude ... the flame from
contacting the stabilizing surface." Id. ,r 23. Wang further discloses that any
combustion fuel and oxidant can be used. Id. ,r 29. An exemplary fuel is
acetylene. Id. Regarding the burner set-up shown in Figure 1, Wang
discloses that"[ c ]oannular sheath flow 112, made of an inert gas 114, e.g.,
nitrogen or argon, may be ejected to shield the combustible and combusting
gas from the surrounding air and keep the flow field uniform." Id. ,r 39.
Accordingly, Wang discloses shield gases and fuel gases that are identical to
suitable enveloping and fuel gases described in Appellant's Specification for
use in the claimed device.
As noted by the Examiner, recitation of the intended use of a claimed
invention must result in a structural difference between the claimed
invention and the prior art to patentably distinguish the claimed invention
from the prior art. Ans. 6. If the prior art structure is capable of performing
the intended use, it meets the claimed limitations. Id. Appellant does not
apprise us of any error in the Examiner's position that the apparatus taught
by Wang would be capable of producing a flame sufficient to perform at
least one of the recited autogenous processes. Id.
Accordingly, we sustain the rejection of claim 1, or of claims 3-6
depending therefrom, as anticipated by Wang.
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Application 14/281,060
Claims 8 and 10
Claim 8 is directed to "[a] method for working or processing at least
one component or workpiece using autogenous processes selected from the
group consisting of autogenous flame cutting, autogenous flame brazing, and
autogenous flame gouging." Br. 23 (Claims App.). The Examiner's
findings for claim 8 are similar to those for claim 1. Final Act. 5-6.
Although Appellant has not persuaded us that Wang's apparatus
would not be capable of being used to perform the claimed working or
processing recited in claim 1, merely having this capability is insufficient to
establish anticipation of the method recited in claim 8. That is, unlike claim
1, claim 8 requires actually working or processing at least one component or
workpiece using one of the three recited autogenous processes. As the
Examiner has not identified any description in Wang of such working or
processing, the Examiner has not established by a preponderance of the
evidence that Wang discloses the method recited in claim 8.
Accordingly, we do not sustain the rejection of claim 8, or of claim 10
depending therefrom, as anticipated by Wang.
Obviousness of claim 2 over Wang and Ruppert
Claim 2 depends from claim 1 and recites, "the end area of the
enveloping gas device facing the component or workpiece protrudes slightly
beyond end area of the burner head or the nozzle that faces the component or
workpiece." Br. 23 (Claims App. (emphasis added)). The Examiner finds
that Wang fails to disclose this limitation. Final Act. 7. The Examiner relies
on Ruppert to teach a burner (tubes 2, 3) surrounded by an annular sheath
flow formed by co-annular tubes (tubes 4, 5) forming an "enveloping
device," as claimed. Id. (citing Ruppert, col. 5, 11. 11-21, Fig. 1). The
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Examiner further finds that tubes 4, 5 protrude slightly beyond the end area
of the burner head or nozzle that faces the component or workpiece. Id.
( citing Rupert, Fig. 1 ). The Examiner reasons that it would have been
obvious to extend the enveloping gas device disclosed in Wang beyond the
discharge end of the burner head, as taught by Ruppert, to prevent mixing
between the central burner flow and the flow from the enveloping gas. Id.
( citing Ruppert, col. 6, 11. 19--26).
Ruppert describes that SiCl4 is fed through injection nozzle 6, oxygen
is fed through vaporizing nozzle 7 and ring nozzle 8, and hydrogen is fed
through outer nozzle 9. See Ruppert, col. 5, 11. 56-63, Fig. 1. As shown,
vaporizing nozzle 7, ring nozzle 8, and outer nozzle 9 extend below injection
nozzle 6. Ruppert further describes, "by the outer limitation of the
vaporizing gas a premature contact with the fuel gas (hydrogen and oxygen)
is prevented. The distance of about 3 mm between the two planes 11 and 12
serves to atomize the liquid SiC14 before the contact with hydrogen from the
ring nozzle 8." See id. at col. 6, 11. 14--18, Fig. 1. Accordingly, Ruppert's
burner structure is configured to prevent premature contact between the fuel
gas and liquid SiCk
Wang discloses that "[c]oannular sheath flow 112, made of an inert
gas 114, e.g., nitrogen or argon, may be ejected to shield the combustible
and combusting gas from the surrounding air and keep the flow field
uniform." See Wang ,r 39.
We agree with Appellant that the Examiner has not provided an
adequate reason with a rational underpinning to modify Wang to extend the
outer nozzle supplying inert gas such that the end of the outer nozzle
protrudes beyond the end of nozzle 102. Br. 19--20. Figure 1 of Wang
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Application 14/281,060
depicts sheath flow 112 already enclosing diverging flow stream 104 and
flame 100. The Examiner has not provided any evidence to show that there
would be any problem of mixing between the central flow and sheath flow in
Wang's apparatus. In that regard, Appellant points out that there is no
atomization or other reaction that occurs in Wang after the precursor and
fuel and oxidizer mixture have been delivered. Id. at 20. The Examiner
appears to agree. See Ans. 9.
Accordingly, we do not sustain the rejection of claim 2 as
unpatentable over Wang and Ruppert.
DECISION
We affirm the rejection of claims 1 and 3---6 and, reverse the rejection
of claims 8 and 10, as anticipated by Wang.
We reverse the rejection of claim 2 as unpatentable over Wang and
Ruppert.
No time period for taking any subsequent action in connection with
this appeal may be extended according to 3 7 C.F .R. § 1.13 6( a )(1 )(iv).
AFFIRMED-IN-PART
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